Velayutham Pillai vs Health Inspector, Nanguneri

R. Balasubramanian, J.—The revision Petitioner in this case is the sole accused in S.T.C. No. 1446 of 1985 on the file of learned judicial

Second Class Magistrate, Nanguneri. Learned Trial Judge by his judgment dated 20-11-1986 found the accused guilty of having violated Section

111 of the Tamil Nadu Panchayats Act and fined him u/s 181(1) of the said Act to pay a fine of Rs. 75/-, in default to undergo two weeks'' simple

imprisonment. The accused challenged the above referred to judgment by filing an appeal in C.A. No. 51 of 1986 on the file of Principal Sessions

Judge, Thirunelveli which was dismissed on 5-3-1987. Hence, this revision before this Court.

A few facts are necessary to be set out hereunder to decide the issues that arise. The complainant is the Health Inspector of Nanguneri

Panchayat. The Revision Petitioner admits that he is running a rice mill. As per the complaint made to the lower Court the revision Petitioner had to

pay the licence fee by way of renewal for running the rice mill on or before 28-2-1984 for the licence year 1984-85. Since he did not pay the

licence fee, a notice dated 27-4-1985 was issued to him by the complainant and thereafter a complaint was lodged, since the accused did not

respond to the notice above referred to. The money due by the accused by way of licence fee together with the penalty comes to Rs. 206-25

made up of Rs. 165/- as licence fee and a sum of Rs. 41-25 as penalty. As already stated, since the accused did not pay the licence fee even after

demand, the complainant, after obtaining the necessary authorisation sanction to prosecute, from the appropriate authority, filed the private

complaint against the accused.

The accused denied the allegations against him and contended that he is not bound to pay at the rate demanded but is bound to pay only at the

rate of Rs. 110/- for the entire period in question and that he remitted that amount to the panchayat which was illegally returned to him. It is his

further case that the validity of the demand of licence fee at the rate of Rs. 165/- per year is pending on an appeal before the Block Development

Officer and, therefore, till the disposal of the appeal, he is not liable to pay the amount as demanded. The accused had not disputed the fact that

the licence fee as demanded by the Panchayat remained unpaid by him for the licence year 1984-85. Learned trial Judge, as already stated, has

rejected this contention of the accused and punished him which was confirmed by the Appellate Judge.

Besides the above point, the accused had also raised an issue namely, that the complaint lodged by the Respondent was barred by limitation. It

is not clear whether this issue was raised before the trial Magistrate or not. However, this issue came to be decided by the Appellant Judge who

held that the complaint is not barred by limitation.

Mr. A. Packiaraj, learned Counsel for the revision Petitioner, mainly contended in the Revision before me, that the complaint lodged by the

Respondent was barred by limitation and, therefore, learned Magistrate ought to have rejected the complaint on that sole ground alone. I heard

Mr. Babu Muthu Meeran, learned Government Advocate on the Criminal Side on behalf of the Panchayat on this issue.

The two grounds raised in the grounds of revision are reiterated before me. They are as follows:

a) More non-payment of the licence fee, unless it is wilful, cannot amount to violating the provisions regarding the non-obtaining of the licence by

paying the necessary fee.

b) the complaint is barred by limitation.

ISSUE A:

It is contended on this point by Mr. A. Packiaraj, learned Counsel appearing for the revision Petitioner, as follows:

The revision Petitioner had remitted a sum of Rs. 110/- towards licence fee which had been returned unlawfully by the Panchayat. Further, since

the issue regarding the quantum of licence fee is pending before the Block Development Officer, the default, if any, committed by the revision

Petitioner cannot be held to be wilful which alone would attract the provisions of the 1958 Panchayat Act.

This argument is not supported by any provision in Tamil Nadu Panchayat Act 1958 (hereinafter referred to as ""the Act""). The violation

admittedly took place when the 1958 Act was in force. Therefore, the rights and liabilities of the parties to this revision should be necessarily

decided only with reference to the provisions contained in the 1958 Act. I find from a reading of the 1958 Act, the submission of the learned

Counsel for the revision Petitioner cannot be sustained and the reasons are as follows:

Section 111(1) of the Act says that The government may by notification specify the purposes which, in their opinion, are likely to be offensive or

dangerous to human life or health or property. Under Sub-section 2(1) of Section 111 of the Act the Panchayat Union Council in the case of

Panchayat villages may, with the previous approval of the prescribed authority, notify (hat no place within the limits of any panchayat village in the

panchayat development block or within the limits of such panchayat village or villages as may be specified in the notification shall be used for any of

the purposes specified in the notification issued under Sub-section (1) without a licence and except in accordance with the conditions specified in

such licence.

A similar power is given under Sub-clause (ii) of Sub-section 2 of Section 111 of the Act, to the town panchayat in respect of Panchayat Town.

The other Sub sections in Section 111 of the Act may not be relevant. u/s 112 of the said Act.

no person shall, without the permission of the Panchayat Union Council in Panchayat villages and the Town Panchayat in a panchayat town and

except in accordance with the conditions specified in such permission-

a) construct or establish any factory, workshop or work place in which it is proposed to employ steam power, water power or other mechanical

power or electrical power,

or

b) install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant

exempted by the rules.

The permission referred to u/s 112(a) of the Act is called an installation permission and the later one as found Section 112(b) of the Act is called as

the running permission. Section 113 provides for the Government making Rules for the grant and renewal of licences and permissions. Section 181

of the Act broadly provides for penalties. Schedule II of the Act prescribes ordinary penalties and schedule III prescribes penalties for continuing

offence. In both the schedules, any violation of Section 111 of the Act is made punishable. As already stated Section 111 of the Act gives power

to the Government to specify the purposes which are likely to be offensive or dangerous to the human life and the panchayat is given the power to

notify the area within which such offensive and dangerous trade cannot be carried on without a licence. Section 112 of the Act speaks about the

installation permission and running permission. Section 159(2) of the 1958 Act provides that for every licence or permission, fee may be charged

as may be fixed by the Panchayat or Panchayat Union Council as the case may be.

Therefore, it is clear that the statute imposes a duty on every person to have the licence or permission which shall be obtained by him on

payment of necessary licence fee to carry on any trade or business for which the licence is required to be obtained. This duty is an absolute one

and there is no exception to it. The Act nowhere makes a distinction between an ordinary failure to pay the fee due forgetting a licence or

permission and a wilful failure to do the same. When the Act itself makes no such distinction, it is not possible to go behind the provisions of the

Act or read between the two lines of any Section in that Act to hold that only wilful neglect in payment of licence fee alone should be made

punishable. It is a well settled principle of interpretation of statutes that the Courts are bound to implement the provisions of the Act as found

therein so long as the provisions admits no ambiguity. Several provisions referred to by me earlier in this judgment do not admit of any ambiguity at

all and they are very clear in its terms. Therefore, the argument of learned Counsel that the wilfulness in payment of licence fee alone is punishable

is not based on any provisions of the Act. Mere pendency of an appeal stated to have been filed by the revision Petitioner before the Block

Development Officer questioning the quantum of licence fee demanded by itself will not enable the revision Petitioner to remit a lesser sum. Unless

there is an order by the Block Development Officer, or any other authority, or Court, disabling the Panchayat from collecting the licence fee for the

renewal of the licence at (he rate specified by them, they are at liberty to collect fee as fixed by them.

ISSUE B:

Mr. A. Packiaraj, very strenuously contended that the complaint is definitely barred by limitation having been lodged after the period prescribed

under the Proviso to Section 166 of the Act. According to him the due date on which the accused should pay fee for having his licence renewed

for the year 1984-85 fell on 28-2-1984 and since the accused had not paid the amount on that date, he is deemed to have committed the offence

for all purposes on the day itself. Therefore, according to the learned Counsel for the Petitioner, though it is a continuing offence, the complaint

should have been lodged within a period of 12 months as provided for in the Proviso to Section 166 of the Act. In support of his argument learned

Counsel read the entire Section 166 of the Act in external and persuaded me to accept his arguments. However, I am unable to do so for the

following reasons:

A careful reading of Section 166 of the Act shows the following: Section 166 provides that no person shall be tried for any offence against this

Act or any Rule or bye-law made thereunder, unless the complaint is made within three months of the commission of the offence by.... It also

provides that nothing contained in that Section shall affect the provisions of the Code of Criminal Procedure in regard to the power of certain

Magistrates to take cognizance of offence upon information received or upon their own knowledge or suspicion. Therefore, a mere reading of

Section 166 of the Act shows that a period of three months is provided for lodging a complaint in respect of any offence made by any person

against the provisions of this Act. The Proviso to Section 166 provides an exception to the main Section by providing a different period of

limitation for certain categories of offences.

For convenience sake, it is better the Proviso to Section 166 is spilt up as follows:

Provided that failure to take out a licence or obtain permission under this Act shall, for the purposes of this Section, lie deemed to he a continuing

offence until the expiration of the period, if any, for which the licence or permission is required.

...and if no period is specified, complaint may be made at any time within twelve months from the commencement of the offence.

The Proviso makes it very clear that a failure to take out licence or obtain permission under this Act shall, for the purposes of this Section be

deemed to be a continuing offence. Then it prescribes a period limitation for lodging a complaint in respect of such continuing offence. Whenever a

licence or permission to be obtained under this Act is to be in force for any particular period, this Proviso makes it clear that the offence so

committed shall be a continuing offence until the expiration of period, if any, for which the licence or permission is required. In this ease, it is not

disputed that the running license for a rice mill is annual. A reading of the evidence of P.W.1 also makes it clear that the running licence will be in

force for a period of one year commencing from March of every year and ending with the month of February of the following year. The fact that

the licence fee had to be paid for the licence year 1984-85 on 28-2-1984 establishes this position. Therefore it is clear that in respect of the

running licence, which the revision Petitioner failed to obtain, there is a specific period of one year commencing from March of a year ending in the

month of February of the following year. In this background if the Proviso is read, then, the failure on the part of the revision petition is not

obtaining the licence would be treated as a continuing offence till the expiration of the period, namely February 1985. Since the violation is

statutorily declared to be a continuing offence till the expiration of the period, the period of limitation, if any prescribed, would commence from 1-

3-1985 and not before that. In the background of this undisputed fact the question which falls for consideration is the time within which the

complaint against the revision Petitioner should be filed in respect of such continuing offence.

A reading of the Proviso to Section 166 of the Act shows that no period of limitation is prescribed for filing a complaint in respect of a

continuing offence relating to the failure to obtain licence or permission and for which the validity period is fixed. The outer period of 12 month

prescribed for lodging a complaint under the Proviso to Section 166 of the Act will not apply to the category of continuing offences like the one on

hand. Proviso to Section 166 of the Act indicates that the period of 12 months for lodging a complaint shall be calculated from the commencement

of the offence and it, for the reasons stated earlier would not apply to a continuing offence, as the one in this case and it would only apply to a

continuing offence relating to licence or permission for which no period is specified. Therefore, according to me in respect of an offence of not

taking out a licence or permission under the Act which has to be in force for a specified period, no period of limitation at all is prescribed u/s 166

of the Act.

The period of limitation for an offence other than a continuing offence is prescribed u/s 156 of the Act. The Proviso prescribes a period of

limitation for a continuing offence and the period of limitation depends upon the fact whether any specified period is there for the licence or

permission, which were not obtained, to be in force. Therefore, the Proviso excludes the operation of the main Section when it comes to a

continuing offence. I have already stated that under the Proviso if any period is specified for the validity of a licence or permission and if such

licence or permission had not been taken under the Act, then it is declared to be a continuing offence until the expiration of that period. On the

above reading of the Proviso to Section 166 of the act the question that is to be decided is that what will be the limitation within which the

complaint should be filed in respect of a continuing offence like the one in this case.

Section 166 of the Act starts with the words ""save as otherwise expressly provided in this Act."" Therefore, the period of limitation provided for

under this Section including the Proviso is subject to their being other express provisions of the Act. Section 165 of the Act also provides a special

period of limitation. It states that no distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any tax

or other sum due to a Panchayat etc., after the expiration of the period of six years from the date the distraint might first have been made, a suit

might first have been instituted, or prosecution might first have been commenced as the case may be in respect of such tax or sum"". The term

licence fees"" cannot be equated to a tax. Section 165 states about any tax or other sum due to a Panchayat. In this case the revision Petitioner had

been running the rice mill without a licence duly obtained. For obtaining a licence, licence fee must be paid. In this case the revision Petitioner had

the benefit of running the rice mill without the licence renewed and without paying the licence fee due for it. Therefore the money due by way of

licence fee is the sum due to the Panchayat. The Tamil Nadu Panchayats Act is a special Act. It prescribes a special period of limitation in respect

of the matters governed under the Act. This being a special law, it excludes the operation of the General law. If Sections 165 and 166 are read

together, it will be clear that the Legislature had taken into account all the contingencies in the matter of prescribing the period of limitation.

When a Special Law provides a period of limitation different from the one that is provided for under the General Law, which Act the Court

should follow is no more res integra.

His Lordship Justice Mr. S. Ratnavel Pandian as His Lordship then was, had an occasion to consider Section 347 of the Tamil Nadu District

Municipalities Act vis-a-vis., Section 468 of the Code of Civil Procedure, Section 347 of the Tamil District Municipalities Act provided a period

of limitation of 12 months. His Lordship in the reported judgment in Commissioner of Tambaram Municipality v. Kothandam 1979 L.W. (Cri.)

112 has held as follows:

When the Special Act prescribes twelve months period for making a complaint contrary to the provision in the present Code prescribing a period

of six months for offences of the nature involved in the instant case, the question is which provision has to prevail, and which period of limitation has

to be applied. Section 5 of the new Code, which is a saving provision, corresponds to Section 1(2) of the old Criminal Procedure Code, and the

essence of the above saving provision is that unless there is anything specific to the contrary, no provision contained to this Code of Criminal

Procedure will affect any special or local law for the time being in force or any special jurisdiction or power conferred or any special form of

procedure prescribed by any other law which is for the time being in force. Thus, Section 5 of the Code saves special or local laws, or special

jurisdictions or powers from the purview of the Code and declares that they remain unaffected by the Code unless there is any specific provision to

the contrary which may be either in the Code of Criminal Procedure itself or in the special or local law. To put it in a nut-shell, nothing in the Code

of Criminal Procedure shall affect any special or local law, which principle reflects the maxim ""Generalia Specialibus non derogant."" The conjoin

effect of Section 4(2) corresponding to Section 5(2) of the old Code, and Section 5of the new Code, is shall that all offences, whether under the

Penal Code, or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code

of Criminal Procedure, unless there be an enactment regulating the manner or place of investigation, inquiry, trial or dealing otherwise with such

offences, in which case such enactment would prevail over the Criminal Procedure Code. As such the provisions of a special or local law will

prevail over those of the Criminal Procedure Code unless there is a specific provision to the contract.

u/s 159(5) of the Tamil Nadu Panchayat Act, 1958 if an act, for which any such licence or permission is necessary, is done without such

licence or permission, or in a manner in-consistent with the terms of the licence or permission obtained, then the Executive Authority of the

Panchayat or the Commissioner may by notice require the person so doing such act to alter, remove, or as far as practicable, restore to its original

state, the whole, or any part of any property, movable or immovable, public or private, affected thereby, within a time to be specified in the notice.

Obviously in complying with this requirement, the complainant had issued Ex.P.1 notice giving seven days time for compliance. I saw the notice

produced by learned Counsel for the revision Petitioner. On perusal of the notice it is clear that the demand is made on the revision Petitioner by

the complainant stating that without obtaining a licence he had been running his rice mill for the entire licence year 1984-85 and, therefore, he must

remit the licence fee due for the abovesaid period within 7 days thereafter. His evidence before the Court is also to that effect. When I wanted to

peruse the complaint itself to find out the exact relief asked for, I find the complaint copy is not available on records. However, the learned

Counsel for the revision Petitioner fairly submitted that the complaint came to be filed before the Court below on 1-7-1985.

Therefore, in the absence of the complaint copy before this Court, I am only guided by the judgments of the Court below as to what the

offence is complained of. The Courts below applying their mind have convicted the revision Petitioner for violation of Section 111 of the

Panchayats Act, 1958 and imposed punishment u/s 181 of the said Act for violation of a provision mentioned in Schedule II.

Since the conviction is for violation of Section 111 of the T.N. Panchayat Act, 1958, it is clear that the gravamen of the allegation in the

complaint should have been that the revision Petitioner had been running the rice mill without having his licence renewed for the year 1984-85.

Thus for this violation, Section 166 of the Panchayats Act 1958, as already referred to by me, did not provide for any period of limitation. It may

be possible to fall back upon Section 165 of the Panchayats Act, 1958 since a reading to Section 166 of the Act itself makes such a course

possible. However, on the facts of this case, I am unable to fall back upon Section 165 of the Act, because it is not established that the complaint

was filed for recovery of any sum due to the Panchayat. u/s 159(6) of the Act if any person is convicted of an offence in respect of the failure to

obtain any such licence or permission, then the Court shall, in addition to any fine which may be, imposed, recover summarily and pay over to the

Panchayat or the Panchayat Union Council, as the case may be, the amount of the fee chargeable for the licence or permission. From the evidence,

I can see that P.W.1 wanted the licence fee due for the renewal for the year 1984-85. Though u/s 159(6) of the Panchayats Act, 1958 a

mandatory duty is cast upon the Court to recover such amount in a summary manner and paid out to the Panchayat, yet in this case it had escaped

the attention of the Courts below. Since I have decided that no period of limitation is prescribed for an offence of this type u/s 166 of the Act, it is

not possible to fall back upon Section 165 of the Act also. For the reasons stated by me earlier, the only provision of limitation on which the case

can be decided is Section 468 of the Code of Criminal Procedure. Since the violation complained of is punishable only with fine, u/s 468(2)(a) of

the Code of Criminal Procedure the complaint should have been lodged within six months. In this case I have already noted that Proviso to Section

166 of the Act of the Panchayats Act, 1958 makes this offence as a continuing offence till the expiration of the period. The licence, in this case, has

to be in force for a period of one year commencing from March, 1984 and ending with February, 1985. The complaint, as fairly stated by the

revision Petitioner, came to be filed on 1-7-1985. Therefore, the complaint lodged by the complainant is well within the period of six months as

provided in Section 468(2)(a) of the Code of Criminal Procedure.

Learned Counsel for the revision Petitioner cited two judgments namely, 1970 L.W. Cri. 49 and 1983 L.W. Cri. 352. In the first case, the

accused was directed to produce certain records within 10 days from 13-4-1967 which expired on 24-4-1967 and the accused did not produce

the records. Hence, the complaint came to be filed on 9th October, 1968. On the facts of that case it was held that the complaint lodged after the

period of three months is barred by limitation. The non-production of the records is not made as a continuing offence. Therefore, on facts this case

is distinguishable. Likewise, in the later case, the accused did not comply with the demand for payment of house tax and water tax for the period

1980-81 and 1981-82. Failure to pay house-tax and water-tax is not treated as a continuing offence u/s 166 of the Act. On the facts of the case,

the learned Judge held that complaint should have been filed within three months from the date of receipt of the demand. Therefore, on facts, this

case is also distinguishable.

In the end, I find there are no merits in the points raised by the revision Petitioner and the revision is accordingly dismissed.